961 F.

2d 1508
22 Fed.R.Serv.3d 1119

Michael DIAZ; George H. White, Regulation No. 56137,

Centennial Correctional Facility; Jesse Lagunas, Regulation
No. 51084; Michael Ingram, Regulation No. 43629, Shadow
Mountain Correctional Facility; Douglas Lee Boehmer,
Regulation No. 75095, Colorado Territorial Correctional
Facility; Flazell Jefferson Beasley, Regulation No. 753153,
Colorado Territorial Correctional Facility, by themselves
and on behalf of all others similarly situated; HIV
Positive Prisoners; HIV Negative Prisoners, PlaintiffsAppellees,
v.
Roy ROMER, Governor, Governor of the State of Colorado;
Walter Kautzky, Executive Director of the Colorado
Department of Corrections; William Wilson, Director of
Division of Adult Services, Unit I; Carlos Baca, Director
of Division of Adult Services, Unit II; John Perko,
Director of the Division of Correctional Industries; Harry
B. Johnson, Superintendent of Centennial Facility; Harold
Henson; Thomas Cooper, Superintendent of Colorado
Territorial Correctional Facility; Frank Rice, Acting
Manager of Diagnostic Unit, Colorado Department of
Corrections, Defendants-Appellants.
Nos. 90-1100, 90-1302.

United States Court of Appeals,

Tenth Circuit.
April 20, 1992.

John R. Parsons, Asst. Atty. Gen., Human Resources Section, Atty.

General's Office, Denver, Colo. (Duane Woodard, Former Atty. Gen.;
Charles B. Howe, Former Deputy Atty. Gen.; Richard H. Forman, Former

Sol. Gen.; Barbara L. Widick, Former First Asst. Atty. Gen.; Gale A.
Norton, Atty. Gen.; Timothy M. Tymkovich, Sol. Gen.; Paul Farley,
Deputy Atty. Gen.; and John August Lizza, First Asst. Atty. Gen., Denver,
Colo., with him on the briefs), for defendants-appellants.
David H. Miller, American Civil Liberties Union, Denver, Colo. (James
E. Hartley and Peter W. Downing of Holland & Hart, Denver, Colo., with
him on the briefs), for plaintiffs-appellees; and
Norman R. Mueller of Haddon, Morgan & Foreman, Denver, Colo.
(David A. Lane, Denver, Colo., and Harold A. Haddon and Caroline M.
McKinnon of Haddon, Morgan & Foreman, Denver, Colo., with him on
the briefs), for plaintiffs-appellees HIV-Negative Subclass.
Before McKAY, Chief Judge, McWILLIAMS and BALDOCK, Circuit
Judges.
McKAY, Chief Judge.

The State of Colorado ("the State") objects to district court decisions regarding
a proposed consent order in class-action proceedings between state prisoners
and the Colorado Department of Corrections ("DOC"). This dispute arises
against the backdrop of a 1979 district court finding that DOC was violating
prisoners' rights under the Eighth Amendment in the areas of shelter, sanitation,
food, medical care, and inmate safety. Ramos v. Lamm, 485 F.Supp. 122
(D.Colo.1979), aff'd in part and set aside in part, 639 F.2d 559 (10th Cir.1980),
cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Since
1979 the parties have negotiated a number of stipulations and consent orders to
resolve the violations, and the district court has exercised continuing
jurisdiction.

The current dispute derives from the Joint Motion for Entry of an Amended
(Master) Consent Order ("Consent Order"), which the parties submitted to
district court. Proposed paragraph 18 of the Consent Order addressed DOC's
policies for testing inmates for the HIV virus and segregating inmates with
positive test results. Citing potential conflicts within the prisoner class
regarding the HIV policies, in September 1989 the district court created two
subclasses of inmates: those whose tests were positive for the HIV virus ("HIVpositives"), and those whose tests were negative ("HIV-negatives"). At the
same time, the court appointed counsel for the HIV-negatives and scheduled a
hearing to determine the fairness of paragraph 18 to the entire class of
prisoners.

On March 7, 1990, at the end of the hearing on fairness, the district court
refused to approve paragraph 18, holding that it was not fair to all prisoners.
Both subclasses of prisoners moved for and were granted attorney's fees as
prevailing parties under 42 U.S.C. 1983 and 1988. Defendants appeal,
arguing that (1) the district court did not have jurisdiction to consider the HIV
policy; (2) the court erred in creating subclasses of plaintiffs; (3) the court erred
in awarding attorney's fees to the HIV-negatives; and (4) the court erred in
granting a motion to compel with associated attorney's fees during discovery for
these proceedings. The prisoner class has moved to dismiss the appeal. For
reasons set out below, we deny the motion to dismiss the appeal, and we affirm
the district court's decisions.

The prisoner class moves to dismiss the appeal, alleging first that the State's
October 19, 1990 Notice of Appeal was untimely filed. On September 13,
1990, the district court ordered the State to pay attorney's fees for the two
plaintiff subclasses. The HIV-negative subclass filed a motion under
Fed.R.Civ.P. 59(e) to amend the judgment as to its attorney's fees on September
18, 1990, and the motion was granted on September 21, 1990. Fed.R.App.P.
4(a)(4) clearly states that a timely motion to amend a judgment will toll the
time for appeal for all parties. Thus the time to appeal for all parties ran from
September 21, 1990, the date of the amended judgment, rather than from the
date of the original judgment. The State's Notice of Appeal was timely filed
within 30 days on October 19, 1990.

The prisoner class also urges dismissing the appeal because the State appealed
the same issues earlier and made substantially the same arguments. This
argument is without merit. The State's earlier interlocutory Notice of Appeal,
which is now moot, does not bar the current appeal.1 The prisoner class's
motion to dismiss the appeal is denied.

We turn now to the State's argument on appeal that the district court had
jurisdiction only over the prisoners' constitutional claims, and not over DOC's
HIV policy. In Duran v. Carruthers, 885 F.2d 1485, 1940-91 (10th Cir.1989),
cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990), this court
found federal jurisdiction under similar circumstances in a classaction suit
against New Mexico prison officials. Applying the three-part test from Local
No. 93, International Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501,
525, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986), as adopted in Duran, we
examine whether in the current case (1) the Consent Order springs from and
serves to resolve a dispute within the district court's subject matter jurisdiction;
(2) the Consent Order comes within the "general scope" of the case made by
plaintiffs in the original complaint; and (3) the Consent Order furthers

objectives upon which the complaint is based. We hold that the test is satisfied
here, because the current dispute is within the "general scope" of efforts to
alleviate constitutional violations originally found in Ramos v. Lamm and over
which the district court had jurisdiction. The district court therefore had subject
matter jurisdiction to consider the Consent Order generally and DOC's HIV
policy specifically.2
7

The State next argues that the district court erred in creating two subclasses of
plaintiffs. This court has previously recognized that "the district court may
redefine the class to include several subclasses." Sears v. Atchison, Topeka &
Santa Fe Ry., 749 F.2d 1451, 1456 (10th Cir.1984), cert. denied, 471 U.S.
1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985). Fed.R.Civ.P. 23(c)(4)(B)
explicitly allows a court to create subclasses "[w]hen appropriate." Other
circuits have described the district courts' broad discretion in this area and the
need for constant sensitivity to possible conflicts within the class. E.g., Payne v.
Travenol Lab., Inc., 673 F.2d 798, 812 (5th Cir.), cert. denied, 459 U.S. 1038,
103 S.Ct. 451, 74 L.Ed.2d 605 (1982); Mendoza v. United States, 623 F.2d
1338, 1346 (9th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67
L.Ed.2d 336 (1981); Scott v. University of Delaware, 601 F.2d 76, 86 (3d Cir.),
cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979).

The district court's Order which created the subclasses in this case included
findings of fact and conclusions of law which explained the "clear, obvious
conflict of interest" between HIV-positives and HIV-negatives regarding
paragraph 18. Neither the plain language of Rule 23(c)(4)(B) nor the cases
cited require the district court to make more detailed findings than those in the
Order. We hold that the district court did not abuse its broad discretion when it
created the subclasses.

The State argues that the district court erred in awarding attorney's fees to the
subclasses, first alleging that HIV-negatives did not prevail on the issue of
paragraph 18, and also claiming that the Order of September 13, 1989
improperly awarded fees in advance of legal representation. Both aspects of the
argument fail. First, HIV-negatives are part of the prisoner class that prevailed
in the original litigation, which spawned subsequent stipulations and consent
orders. HIV-negatives did not lose their prevailing-party status when they were
named a subclass. Second, the Order in question appointed counsel for HIVnegatives and established rates, but not amounts, of the attorneys'
compensation. Attorney's fees were not actually awarded until September 1990,
when the matter was properly before the court on motions by the subclasses,
and after a hearing had been held on the amount of fees.

10

Case law and the plain language of 42 U.S.C. 1988 clearly state that attorney's
fees can be awarded for post-judgment monitoring and other efforts to ensure
compliance with court orders in a civil rights case. Duran v. Carruthers, 885
F.2d 1492, 1495 (10th Cir.1989) (awarding fees and finding that consent decree
"was only the beginning, and counsel for the plaintiffs has a continuing duty
and responsibility to make sure that the defendants comply, and continue to
comply, with the decree"); Adams v. Mathis, 752 F.2d 553, 554 (11th
Cir.1985); Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir.1984); Miller v.
Carson, 628 F.2d 346, 348 (5th Cir.1980); Northcross v. Board of Educ., 611
F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 3000,
64 L.Ed.2d 862 (1980); see also Pennsylvania v. Delaware Valley Citizens'
Council, 478 U.S. 546, 559, 106 S.Ct. 3088, 3095, 92 L.Ed.2d 439 (1986)
(non-civil rights case citing Garrity, Miller, and Northcross with approval). As
the Northcross court observed, "Services devoted to reasonable monitoring of
the court's decrees ... are compensable services. They are essential to the longterm success of the plaintiff's suit." Northcross, 611 F.2d at 637.

11

The State argues that the district court erred in granting a motion to compel
with associated attorney's fees during discovery for these proceedings. The
district court's Order, which awards attorney's fees pursuant to Fed.R.Civ.P.
37(a)(4), enumerated acts by the State or its counsel that obstructed the
litigation process. We have reviewed the record and find the district court's
conclusions well supported. We hold, therefore, that the district court did not
abuse its discretion in granting the motion to compel and in awarding attorney's
fees associated with the motion. The Supreme Court has held that even severe
sanctions are available to a district court under Rule 37 to penalize and deter
abuse of the discovery process. National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747
(1976) (per curiam). In affirming the district court's Order here, we reiterate our
statement in Gates v. United States, 752 F.2d 516, 517 (10th Cir.1985): "[T]he
time has now come to put teeth in the tiger [of Rule 37]."

12

AFFIRMED.

The parties briefed the issue of whether the interlocutory Notice of Appeal,
which used the names of former parties in the caption, was sufficient to confer
jurisdiction. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405,
101 L.Ed.2d 285 (1988), and Fed.R.App.P. 3(c) require parties to be named
with specificity. The names in the caption here represent class-action
participants and government officials who are sued in their official capacities.

Although the participants' names have changed over the years, the official
capacities represented have remained constant. There is no question in this case
of a party dropping out of the suit or of depriving a party or the court of notice
regarding the identity of the appellants. Torres, which did not involve
government officials sued in their official capacities, is thus inapplicable here
2

Citing an upsurge in institutional reform litigation, the Supreme Court recently

held that consent decrees governing prisons or jails can be modified under a
"flexible standard" where the party seeking modification establishes a
"significant change in facts or law." The party need not prove a "grievous
wrong" to prevail. Rufo v. Inmates of Suffolk County Jail, --- U.S. ----, 112
S.Ct. 748, 116 L.Ed.2d 867 (1992)